The history of criminal justice system reform efforts especially vis-à-vis police, the most important component of the system, has been replete with administrative efforts in both India and Pakistan. In case of Pakistan, as many as 21 commissions/committees/initiatives relating to police reforms were recorded till the year 2000. The implementation of these reforms is, however, a challenge in both the countries. The instant write-up will adumbrate on how the Indian Supreme Court implemented some reform components relating to police; the attempt may inform the debate on implementation of police reforms in Pakistan.
Implementing Police Reforms
The Supreme Court of India (hereinafter SCI) decided two cases that defined its efforts in implementing police reforms in the country. The first is the case of Prakash Singh that was decided in 2006; while the second is of Dr. Senkumar that was decided in 2017. A brief introduction of the two judgements is as under:
A. Prakash Singh Case (2006)
As recorded in the judgement, the Prakash Singh Case was filed in 1996 by retired police officers. The case was heard by a three-member bench of the SCI headed by the then Chief Justice Yogesh Kumar Sabharwal. Justice Sabharwal noted in the judgement the history of police reforms. He particularly noted that eight reports were submitted by the National Police Commission (NPC), which was constituted by the Government of India on 15th November 1977. The NPC produced as many as eight reports over a period of four years (i.e. till 1981). It also prepared a model Police Act for India. The reports gathered dust till 1996 when some retired police officers filed a petition in the SCI. The prayer of the petitioners was summarized in the judgement in the following words:
“The petitioners seek that Union of India be directed to redefine the role and functions of the police and frame a new Police Act on the lines of the model Act drafted by the National Police Commission in order to ensure that the police [are] made accountable essentially and primarily to the law of the land and the people. Directions are also sought against the Union of India and State Governments to constitute various Commissions and Boards laying down the policies and ensuring that police perform their duties and functions free from any pressure and also for separation of investigation work from that of law and order.”
The SCI then outlined the proceedings and the processes that followed since 1996. The SCI, after discussing all the issues and its earlier judgements, directed that the following seven directions be followed by the Union:
1. Establishment of the State Security Commission;
2. Selection of the Director General of Police;
3. Minimum tenure of IGP and other officers;
4. Separation of investigation from law and order duties;
5. Establishment of the Police Establishment Board (at state level);
6. Establishment of the Police Complaints Authority (at district and state levels);
7. National Security Commission.
The judgement repeatedly refers to the rule of law as the basis for its decision, in addition to the statutory and constitutional powers. In addition, the judgement took note of the draft Police Act prepared by the Police Act Drafting Committee (Sorabjee Committee), which was also finalized in 2006.
The contribution of the SCI to police reforms in India was defined by this judgement, which has been subject to implementation since 2006. Commonwealth Human Rights Initiative (CHRI) has categorized the issues of establishment of the State Security Commission, Selection of the Director General of Police, minimum tenure of police officers and establishment of Police Establishment Boards as matters that relate to police autonomy. The issues of Police Complaints Authority and separation of investigation from watch and ward duties were styled as accountability-related matters. The SCI kept monitoring the implementation of the judgement. As a result, the model police law that was influenced by the court’s orders got adopted by different states including the state of Kerala where the Kerala Police Act, 2011 was enacted; the enactment became the legal basis of the latest Dr. Senkumr’s case where one of the policy reform measures (tenure protection of police officers) proposed in the judgement came to test.
B. Dr. Senkumar Case (2017)
On 24th April 2017, a two-member bench (Madan B Lokur and Deepak Gupta JJ.,) of the SCI passed a detailed judgement on the issue of legally-protected tenure of a police officer under the law. The brief facts of the case, as recorded in the judgement, are that Dr. T. P. Senkumar, an Indian Police Service (IPS) officer was appointed as the State Police Chief (SPC) of Kerala on 22nd May 2015. He was then prematurely removed by the Government of the State from his post by invoking Section 97 of the Kerala Police Act, 2011 on 27th May 2016. It may be noted that Section 97, besides providing for two-year tenure for the SPC, provides for six grounds that could be invoked for affecting premature transfer of SPC. The judgement noted that the State Government removed the officer before completion of his two-year tenure on the basis of its prima facie satisfaction. The State Government removed him under Section 97(2)(e) of the Kerala Police Act, 2011 by noting that the officer ’caused serious dissatisfaction in the general public about efficiency of police in his jurisdiction’. After his premature removal, the officer approached the Central Administrative Tribunal, from where his case was dismissed. He then filed a writ petition before a Division Bench of the Kerala High Court, which was also dismissed. The SCI took up the case after all the fora were exhausted by the officer. The SCI passed a detailed judgement that spanned over ninety paragraphs. The SCI analyzed all the record of the case including the order of removal dated 27th May 2017. The SCI minutely analyzed the facts of the case along with the law. Chief points of its reasoning are briefly stated here:
1. That the officer was removed on account of two events: first, the ‘Puttingal Temple Tragedy’ and the second, Jish Murder case. The two events were not stated in the removal order, but were reflected in court proceedings that took place later on at the Tribunal and at the Kerala High Court. Of these two, more important was ‘Puttingal Temple Tragedy’ that took place on 9th April 2016 on the eve of a festival called ‘Meena Bharani Utsavam’ in district Kolam. During the festival, a fireworks competition was planned without the approval of the district administration; due to the unauthorized fireworks, an accident took place killing over 100 people and injuring over 400. The inquiry committee on the tragedy singled out only police officers responsible for the tragedy; at which, the SPC objected and insisted that the police officer should not be singled out in the case and the officers of the district administration, revenue, the directorate of explosives, environmental engineering, fire and rescue should be held equally responsible. The insistence on comprehensive accountability culminated into friction between the SPC and the Chief Secretary (CS). The officer was, in the opinion of the SCI, being victimized for his stance in favour of his department.
2. While distinguishing the case law, the SCI, in its paragraphs 68 and 69 noted the following – and it might be of interest to anyone studying the nature of public administration in the South Asia:
“68. Our attention was also drawn to an observation in Citizens for Justice & Peace v. State of Gujarat to the effect that “the appointment of a government servant is the prerogative of the particular Government, particularly, when it is a sensitive appointment of the Director General of Police.” It was then observed that this Court would not extend its hands to upset such an appointment under the judicial doctrine review.
69. The broad principle laid down in Royappa is obviously applicable to the present case, but with two distinctions, one of them being that it did not deal with a tenure post or an appointment and replacement under a statute. Of course and undoubtedly the post of Chief Secretary of a State and the Director General of Police or the State Police Chief are both sensitive posts. But the sensitivity attached to the post of a Chief Secretary has a different dimension from the sensitivity attached to the post of the State Police Chief, which is of a different genre.
Unlike the Chief Secretary of the State, the State Police Chief as the head of the police force is concerned with the investigation of crimes, law and order and public order and not general executive administration. Prakash Singh makes it very clear that the police must be permitted to function without any regard to the status and position of any person while investigating a crime or taking preventive measures. In other words, the rule of law should not become a casualty to the whims and fancies of the political executive. In that event, the State Police Chief might be pressurized laterally by the political executive and vertically by the Administration.
It is to ensure (and that is the rationale for the decision of this Court) that no such pressure is exerted on the State Police Chief and if so exerted, then the State Police Chief does not succumb to such pressure, that Prakash Singh provided for security of tenure and insulating the police from the Executive.”
3. While the SCI found the genesis of the instant case in its earlier judgement in Parakash Singh & Ors vs. the Union of India, it relied on the doctrine of the rule of law to reason its judgement. Another factor considered by the SCI was the issue of vertical and lateral pressures on police. It noted, in para 7, from a research paper styled as “Political and Administrative Manipulations of the Police”:
“… The present predicament of Police is that they have been exposed to a two-pronged pressure vertically from the Administration and laterally from the politicians. With these two pressures, the independent functioning of the police can and sometimes does get compromised at the hands of very important persons and those claiming proximity to very important persons.”
Reform through the Supreme Court of India
The cases discussed in this article evince that the Supreme Court of India has consistently followed its earlier judgements, and has also shown reverence to the police reforms introduced through the National Police Commission. The SCI appears to have followed a hybrid approach in which the judiciary has chosen to implement the work of the executive on police reform, which had yet not been legislated. Dr. Senkumar Case may be a point of departure for adjudicating the police reforms that Prakash Singh Case tried to implement. In any event, the judgement of Dr. Senkumar Case is being celebrated by the police officers as a triumph for the rule of law in India.
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