W.P. (C) 310/1996
Writ for Supreme Court directions on Police Reforms
The enactment of the Indian Police Act in 1861 resulted in some far-reaching changes to the law enforcement system of this country. This combined with the absence of any type of comprehensive review at the national level of the police system after independence led to the appointment of the National Police Commission (NPC) on 15th November 1977 by the Government of India. The commission was appointed for a fresh examination of the role and performance of the police, both as a law enforcement agency and as an institution to protect the rights of the citizens guaranteed by the Constitution. Despite several decades having passed since the NPC gave detailed reports of recommendations, these reforms had not been implemented. They met the same dead-end fate as the recommendations of many other Commissions.
The petitioners in this case, Mr. Prakash Singh, Mr. NK Singh and Common Cause decided to raise the issue of police reforms in the Supreme Court. The petition prayed for the Supreme Court to issue directions to the Government of India to frame a new Police Act along the lines of the Model Police Act.
In its landmark judgement of September 22, 2006, the court observed that no action found necessary to remedy the situation that was within the constitutional scheme was too stringent for these circumstances. The court could only express its hope that all State Governments would rise to the occasion and enact a new Police Act wholly insulating the police from any external pressure. This would be an important measure taken to secure the rights of the citizens under the Constitution for the Rule of Law and guarantee that everyone is treated equally and without prejudice or partiality.
The court laid down certain guidelines in its judgment. These were to be operative till the new legislation was enacted by the State Governments. The seven directives are the following:
- State Security Commission (SSC): Meant to ensure that the government of each state does not influence or pressure the state police, as well as to maintain policies that ensure compliance of the state police with the law of the land and the Constitution.
- Selection and Minimum Tenure of Director General of Police (DGP): The DGP to be selected by the state government on merit from amongst the panel of three senior-most officers of the Department. The DGP should have a minimum tenure of at least two years irrespective of his date of superannuation.
- Minimum Tenure of I.G. of Police & Other Officers: Police officers on operational duties like Inspector General of Police (IG), Deputy Inspector General of Police (DIG), Superintendent of Police (SP) and Station House Officer (SHO) shall have a prescribed minimum tenure of two years unless they face disciplinary proceedings, are convicted in criminal or corruption cases, or are otherwise unable to perform their duties.
- Separation of Investigation: The investigative functions of the police should be separated from those related to law and order to ensure speed, efficiency, and good relations during investigations.
- Police Establishment Board (PEB): To be constituted in each state to decide all transfers, postings, promotions and other service-related matters of officers of and below the rank of Deputy Superintendent of Police (DSP).
- Police Complaints Authority (PCA): To be constituted at the district level to look into complaints against police officers of and up to the rank of DSP. Similarly, there should be another Police Complaints Authority at the state level to look into complaints against officers of the rank of SP and above.
- National Security Commission (NSC): To be constituted by the central government at the Union level to prepare a panel that will select and place chiefs of the Central Police Organisation (CPO) who will also have a minimum tenure of two years. The commission would also review from time to time the effectiveness of these forces, improve the service conditions of its personnel, ensure that there is proper coordination between the different factions, certify that the forces are generally utilised to fulfill the purposes for which they were raised and make recommendations based on these reviews.
The court gave time till 31.12.2006 for these directives to be carried out by the states. However, several states along with the Union filed an impleadment application in the case praying for modification of direction nos. 1, 4 and 6 of the order. Simultaneously, Mr. Prakash Singh and several others filed contempt petitions in the matter owing to the failure of the states to implement the court directives. The Supreme Court set up another commission headed by Justice KT Thomas to look into the matter. The Thomas Committee submitted its report in 2010 on the matter of non-implementation of the judgement in several states. After perusal of the Thomas committee report, the court gave further directions to the states of West Bengal, Karnataka, Maharashtra and Uttar Pradesh to comply with the directives. Mr. Harish Salve was appointed as amicus curiae in the case on January 24, 2011.
By its order dated July 3, 2018, the Supreme Court reiterated its 2006 judgement by directing the states to select the DGP from a list of officers empaneled by the UPSC. It gave the following directives:
(a) All the States shall send their proposals in anticipation of the vacancies to the UPSC, well in time at least three months prior to the date of retirement of the incumbent on the post of DGP;
(b) The UPSC shall prepare the panel as per the directions of this Court in the judgment in Prakash Singh’s case(supra) and intimate to the States;
(c) The State shall immediately appoint one of the persons from the panel prepared by the UPSC
(d) None of the States shall ever conceive of the idea of appointing any person on the post of DGP on acting basis for there is no concept of acting Director General of Police as per the decision in Prakash Singh’s case(supra);
(e) An endeavour has to be made by all concerned to see that the person who was selected and appointed as the DGP continues despite his date of superannuation. However, the extended term beyond the date of superannuation should be a reasonable period. We say so as it has been brought to our notice that some of the States have adopted a practice to appoint the DGP on the last date of retirement as a consequence of which the person continues for two years after his date of superannuation. Such a practice will not be in conformity with the spirit of the direction.
(f) Our direction No.(c) should be considered by the UPSC to mean that the persons are to be empanelled, as far as practicable, from amongst the people within the zone of consideration who have got clear two years of service. Merit and seniority should be given due weightage.
(g) Any legislation/rule framed by any of the States or the Central Government running counter to the direction shall remain in abeyance to the aforesaid extent.
To clarify the above order, the Apex Court on 30 July 2018 said that in case of a sudden vacancy for the post of the DGP, then a DGP has to be appointed on an interim basis.
In the hearing on 11 September 2018, the Court directed that a copy of the application be served to the Amicus Curiae, Mr. Raju Ramachandran and to the counsel assisting the Attorney General, Mr KK Venugopal.
In the hearing on 20 September 2018, it was submitted by the AG that the interim DGP of Jammu and Kashmir had been appointed temporarily and names had been sent for for regular appointment. The counsel for UPSC stated that some deficiencies had been found in the communication sent by the J&K government. The Court directed the UPSC to take a decision on the matter within four weeks. The matter is listed for hearing after six weeks.
In the hearing on 10 December 2018, IA No. 174012/2018 has been listed with IA No. 144172/2018 in Writ Petition (C) No. 310/1996.
On 12 December 2018, the interlocutory applications filed on behalf of the states of Punjab and Haryana were taken up as the term of the present Director General of Police (DGP) expires on 31st December, 2018. The original petitioner is required to file the objections & the Court has estimated that the objections and the reply may be exchanged between the parties by January 8, 2019.
In the state of Bihar, the term of the Director General of Police is till 31st January, 2019. No specific order has been passed in this regard. The interlocutory applications pertaining to the States of Punjab, Haryana and Bihar were listed on January 8, 2019.
On January 15, 2019, the Secretary of the Union Public Service Commission was directed to inform the Court about the empanelment of IPS Officers for promotion to the rank of Director General of Police (DGP) in different States, made by the Public Service Commission in the discharge of its functions, before January 16, 2019, 10:30 AM.
On January 16, 2019, Rakesh Kumar Gupta, Secretary, Union Public Service Commission (UPSC) appeared personally on the request of the Court. He stated before the Court that after the judgment was rendered in Prakash Singh Case, a panel of eligible officers in the rank of DGP or Additional DGP had been drawn up by a committee of the UPSC, where the said committee consisted of representatives of the UPSC, the Central Government and the State Governments concerned. 12 States already have the committee in place and subsequent to the directions of this Court, dated July 3, 2018, panels have been drawn up for two States and proposals have been received from two more States for the purpose of drawing up such panels.
I.A. No. 144172/2018 filed on behalf of the State of Punjab was taken up. Subsequent to the decision of this Court in Prakash Singh Case, the State of Punjab enacted the Punjab Police Act, 2007.
The validity of the Punjab Police Act, 2007 has also been challenged before through W.P.(C) No. 286/2013, which is presently pending.
Later, the order dated July 3, 2018 was passed. The Punjab Police Act, 2007 was also amended on September 21, 2018. This amendment remains unchallenged.
The Attorney General KK Venugopal and the Counsels of the State of Punjab referred to the relevant entries on the Union list and State list concerning the selection of DGP.Mr. Raju Ramachandran, the Amicus Curiae and Counsels Mr. Prashant Bhusan and Mr. Gopal Sankaranaraynan, learned counsels submitted that keeping in mind the spirit behind the decision in Prakash Singh Case as well as the objectives it sought to achieve, the order dated July 3, 2018 is wholesome.
Both, the provisions of the original Act as well as the amendment Act were contrary to the Prakash Singh Case and the order dated July 3, 2018, however, the bench said that any expression of opinion of this Court on the contentions raised may have the effect of pre-judging the issues arising in W.P.(C) No. 286/2013.
The court specifically referred to para 12 of the Prakash Singh Case:
“The commitment, devotion and accountability of the police has to be only to the rule of law. The supervision and control has to be such that it ensures that the police serves the people without any regard, whatsoever, to the status and position of any person while investigating a crime or taking preventive measures. Its approach has to be service oriented, its role has to be defined so that in appropriate cases, where on account of acts of omission and commission of police, the rule of law becomes a casualty, the guilty police officers are brought to book and appropriate action taken without any delay.”
The Court referred to the Prakash Singh Case with order dated July 3, 2018 and said that it does not require any correction or modification, presently. Until the matter is finally concluded, implementing these will subserve public interest.
In IA Nos. 24616/2019, 115064/2018, 20735/2019 and 11484/2019, the Chief Justice pronounced the judgment of the bench comprising Justices L. Nageswara Rao and Sanjiv Khanna, on March 13, 2019. All applications filed by the states of Punjab, Bihar, Haryana, West Bengal and Kerala were dismissed by the bench headed by the Chief Justice Ranjan Gogoi along with Justice L Nageswara Rao and Justice S K Kaul.
In Cont.Pet.(C) No.2110/2018, the bench dismissed the petition. A contempt petition was filed by the Concerned People of Nagaland, alleging willful disobedience of the order passed on 22nd September, 2006 in Writ Petition (C) No.310 of 1996 [Prakash Singh and Others vs. Union of India and Others, (2006) 8 SCC 1] by the Apex Court. The decision mandated empanellment by the Union Public Service Commission for the appointment of the Director General of Police in a State.
The Concerned People of Nagaland had alleged that the appointment of the incumbent was made in violation of Court’s order. The Chief Secretary to the Government, Nagaland claimed in an affidavit that the State of Nagaland has a handful of IPS officers with large number of vacant posts. No IPS officer in the Nagaland cadre had completed 30 years of service. Additionally, the appointment had been made from outside the cadre and, therefore, the state did not refer the matter to the Union Public Service Commission.
The bench consisting Chief Justice and Justice Sanjiv Khanna observed that in this case, the State has departed from the directions of the Court on grounds that are not illegitimate; but the State should have taken the Court into confidence before resorting to the impugned action. The Court has ordered that either the State Government should comply with the directions or move an application before the Supreme Court, taking responsibility of its actions, nevertheless, this would not qualify as a case of willful disobedience of the Court.
On March 13, 2019, the bench consisting the Chief Justice, Justice L Nageswara Rao and Justice Sanjiv Khanna clarified the order of the Supreme Court dated July 3, 2018, passed in I.A. No. 25307/2018 in Writ Petition No. 310/1996. The recommendation for appointment to the post of Director General of Police by the Union Public Service Commission and preparation of panel should be purely on the basis of merit from officers who have a minimum resident tenure of six months i.e. officers who have at least six months of service prior to the retirement. The bench also mentioned that until the validity of the Police Acts are examined and dealth with by this Court in Writ Petition (Civil) No. 286/2013, this direction will hold the field.
Judgement 22.06.2006 WP 310/1996
WP (C) 310/1996
WP (C) 310/1996
Order_20 Sep 2018
Order_30 Nov 2018
Order_7 Dec 2018
Order_10 Dec 2018
Order_12 Dec 2018
Order_8 Jan 2019
Order_15 Jan 2019
Order_16 Jan 2019
Order_19 Feb 2019
Order_13 Mar 2019
Order_28 Feb 2019
Order_13 Mar 2019
Judgement 13.03.2019 WP 310/1996
Order_12 Apr 2019