Sample Material of Current Public Administration Magazine
Why States Do Not Want Police Reform?
There is general agreement that Police Reforms will free up the Police from
the whims of politicians, and lead to better policing. So why do States not
implement Police Reform despite a SC directive?
In a move designed to stymie the slow pace of police reforms,
the governments of Maharashtra, Uttar Pradesh and Andhra Pradesh have argued
that the Supreme Court’s directions violate the basic framework of the
Constitution. These directions, which seek to break the State governments’
stranglehold over police appointments and transfers have been challenged on the
ground that they interfere with the exclusive prerogative of the State Executive
and hence ride roughshod over the Constitutional scheme.
Executive control over the police has been a festering wound
for far too long. How ugly and pernicious it is to democracy and rule of law was
first proved in the Vineet Narain case (the “Jain Diaries “case, 1998 ). The
Supreme Court was constrained to step in and direct and supervise a CBI
investigation of one of the biggest graft scandals, involving functionaries at
the highest echelons. The Court, not unconscious of the boundaries of its own
powers as set down by the Constitution, had evolved a slew of mechanisms to
extricate the “caged parrot” (a recent stinging quip by the Supreme Court) from
It is not only the CBI which suffers, but even the State
police is enmeshed in a precariously claustrophobic structure. Last year, when
SI Sachin Suryavanshi did his duty of pulling up errant MLAs, he was assaulted
and subjected to every possible form of victimisation. Ex- Police Commissioner
of Mumbai Arup Patnaik, was shunted out by a cabal of politicos and the
government for his bold step in diffusing a potential riot.
Hence, it came as no surprise when the Supreme Court’s
judgement in Prakash Singh v Union of India (2006) stirred the proverbial
hornet’s nest. To put it in a nutshell, the Supreme Court, observing that
Article 142 of the Constitution (Power of the Supreme Court to do complete
justice) empowered it to issue directions regarding a radical overhaul of the
Police Act, 1861. Broadly classified, the directions were two-pronged:
a) To divest the Act of all its colonial vestiges and transform its focus
from “rule” to “governance”.
b) To grant immunity to the police from the Executive and politicians.
The latter direction was greeted with surprisingly unanimous
hostility by all State governments. Cutting across party-lines, the shrill
refrain was that the Supreme Court was bent upon arrogating all powers to itself
and thus destroying the Constitutional scheme of separation of powers. They
contended that it would destroy democracy and lead to “juristocracy”- a term
coined by Max Boot, investigative reporter for the Wall Street Journal in his
treatise entitled Out of Order: Arrogance, Corruption, and Incompetence on the
Predictably, governments had been dragging their feet on
implementing the reforms, until last week when the issue reared its ugly head
before a Supreme Court Bench. The Court was asking for status reports from
respective State governments. Significantly, the Maharashtra and Uttar Pradesh
governments took the following pleas–
In Prakash Singh, the Supreme Court had only issued “recommendations” and not
under Articles 154 and 163, the Executive power of the State is vested in the
Governor, who shall act in accordance with the aid and advice of the Council of
Ministers or the Cabinet.
Citing Article 163 (3), they contended that the Court has no
power to question how such advice has been tendered. Emphasis was laid on
“shall” (which in law means mandatory, in contrast with “may”, which means
Shorn of the trappings of legalese, what is the import of these two
In the judgement, the Court had clearly spelled out,
repeatedly, that it was issuing “directions”. To now claim that they were
“recommendations” is nothing but a sleight of hand the Constitution is an
impregnable fortress, and its words and their interpretation remain static. Any
interpretation which goes beyond the literal one would be blasphemous. So, the
Court should keep away from Executive prerogative, and doing otherwise would
mean militating against the scheme laid down by the Constitution’s founders.
Now, it is not the first time that such a question had come
up before the Court. There has been a catena of judgements where it has been
asserted that the Court can, exercising its powers of judicial review, question,
and if necessary, strike down Executive actions.
How tenable is this argument? Obviously, not much, because no
law, far less the Constitution of a country, can be kept in a secluded corner.
It must be interpreted in a way so as to meet the demands of the times. Else, it
runs the grave risk of being banished into redundancy.
Moreover, there are two ways of interpreting a law. One is the "literal",
which looks only at the letter of the law. The other is the "purposive", which
looks at both letter and spirit, with an eye on what the overall objective of
the law is.
Surely, literally speaking, there is immunity from judicial
scrutiny granted to the Governor's decision. But did the founders intend this
immunity to be used as a shield for Executive high-handedness? No. For doing so
would mean giving an imprimatur for subversion and manipulation.
Moreover, Article 141 clearly stipulates that the law laid down by the
Supreme Court shall be the law of the land. And the Court's power to interpret
the Constitution is an integral part of such power.
Two landmark cases come to mind. In Epuru Sudhakar v State of
Andhra Pradesh ( 2006), the Court held that it could enquire into the exercise
of the Governor’s power to approve clemency petitions or commute sentences. Such
a step was necessitated because many dangerous convicts were being set free on
the basis of extraneous, political conditions, none of which would survive legal
Rameshwar Prasad v Union of India (2006) was the one where the imposition of
President’s Rule in Bihar was challenged before the Supreme Court.
This case was borne out of the misuse of the Governor’s
position by the government in power at the Centre. At the behest of his party
(Congress) bosses, Governor Buta Singh, prepared a report recommending the
imposition of President’s Rule. The purported reason was to control the anarchy
in the State. The real reason was to ensure that the newly elected Nitish Kumar
government was kept away from the precincts of the State Assembly.
In a judgement running into 154 odd pages, the Court gave a detailed
interpretation of the scope and ambit of judicial review of the Governor’s
It deference to the Constitution, it held, that the Court will never get into
whether the Governor could have taken a better decision. But, this does not
preclude the Court from looking into how this decision was arrived at- that is,
what factor(s) were taken into consideration. The central government and
Governor’s brazen skullduggery stood exposed, and the President’s Rule was
These two cases bear ample testimony to the fact that the
Maharashtra and Uttar Pradesh governments are leaving no stone unturned to
retain control over the police force. They are just too aware of the
consequences of this disenfranchisement – their scepter of rule would be taken
away and replaced by a mandate of governance. Everybody is painfully aware how
years of this control has contorted the law and order situation in these two
states into a farce. Therefore, it is imperative that such specious pleas are
rejected outright. That would be in true harmony with the letter and spirit of
the Constitution and its framework.
In the September 22, 2006 case on police reforms, the Supreme Court sought to
achieve two main objectives:
i.) functional autonomy for the police through security of tenure,
streamlined appointment and transfer processes, and the creation of a "buffer
body" between the police and the government; and
ii.) enhanced police accountability, both for organisational performance and
The court gave the following seven directives for all states to implement
within a prescribed time:
1.) a) Constitute a State Security Commission to ensure that
the state government does not exercise unwarranted influence or pressure on the
police, b) lay down broad policy guidelines, and c) evaluate the performance of
the state police.
2.) Ensure that the DGP is appointed through a merit-based, transparent process
and secure a minimum tenure of two years
3.) Ensure that other officers on operational duties (including SPs and Station
House Officers (SHOs)) are also provided a minimum tenure of two years
4.) Separate investigation, and law and order functions
5.) Set up a Police Establishment Board to decide transfers, postings,
promotions and other service related matters of officers of and below the rank
of Deputy Superintendent of Police (DSP) and make recommendations on postings
and transfers above the rank of DSP
6.) Set up a Police Complaints Authority at the state level to inquire into
public complaints against officers of and above the rank of DSP in cases of
serious misconduct including custodial death, grievous hurt, or rape in police
custody, and at district levels to inquire into complaints against personnel
below the rank of DSP in cases of serious misconduct
7.) Set up a National Security Commission at the Union level to prepare a panel
for selection and placement of chiefs of the central police organisations with a
minimum tenure of two years.
(Source- http://www.dnaindia.com )
this magazine (Current Public Administration) free if you purchase our any of
the below courses: