Case studies in the selection of Police Chiefs in India
The State of Kerala as well as the Union Territory of Delhi has new police chiefs who took over their duties on the last day of June 2021. An attempt is being made in this article to examine and understand the process through which they were selected. (Tamil Nadu and Uttar Pradesh too got new Police Chiefs last week, but I do not have the requisite details about the process which was adopted in those two States)
Is there a law laying down how the Police Chief of a State or Union Territory is to be selected? Well, the Police in India had been governed by the Indian Police Act of 1861 for over a century. It did not spell out how the Chief of the State Police (who was then called Inspector General of Police) was to be selected and appointed.
The National Police Commission, appointed after the ‘Emergency Period’ to study the shortcomings in Indian Police, recommended that major reforms were required to ensure that the police in the States did not act as the handmaiden of the political party in power, which they identified as the major weakness of the Police in our country. Though these recommendations were made in 1980, governments neither at the Centre nor in the States made any earnest effort to implement them. (Here, I must take note of the fact that A. K. Antony, as Chief Minister of Kerala during the period 2001-2004, made an effort to free the Police from political control, but his initiative, which did not receive any support even from his own party men, died a natural death once he demitted office. Similarly, Inderjit Gupta, during his brief stint as Union Home Minister in 1997, wrote to the State Governments drawing attention to the distressing political pressure under which the Police functioned and expressed the view that if the Rule of Law had to prevail, the situation must be cured, but to no avail).
In 1996, Prakash Singh, a former Director General of Police approached the Supreme Court seeking a direction to the Government, among other things, to 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 is made accountable essentially and primarily to the law of the land and to the people. It was ten years later, in 2006, that the Apex Court, finally gave its verdict. In the interregnum, the Union Government ( in the Ministry of Home Affairs) had appointed a few more Commissions in the hope of diluting the original recommendations of the National Police Commission. Finally, on 22.09.2006, a Supreme Court bench headed by the Chief Justice Y. K. Sabharwal came out with a historic judgement upholding the recommendations of the National Police Commission. It is worth quoting the relevant passages therefrom:
“Besides the Home Minister, the Commissions and Committees above noted, have broadly come to the same conclusion on the issue of urgent need for police reforms. There is convergence on the need to have (a) State Security Commission at State level; (b) transparent procedure for the appointment of Police Chief and the desirability of giving him a minimum fixed tenure; (c) separation of investigation work from law and order; (d) a new Police Act which should reflect the democratic aspirations of the people. It has been contended that a statutory State Security Commission with its recommendations binding on the Government should have been established long before.” (The reference to Home Minister can only mean Inderjit Gupta).
The Apex Court then went on to say that it had waited long enough for the governments to introduce the requisite reforms and said it was laying down guidelines which would henceforth guide police functioning until such time as the State and Central Governments brought in new legislation. These guidelines were in line with the recommendations of the National Police Commission. One of the key recommendations was that the State Police Chief (SPC) should have a secured and assured tenure of two years so that he need not be apprehensive about being removed from office for not succumbing to pressure from the ruling party in discharging his duties. The Supreme Court laid down that the SPC of any State shall be selected by the state government from amongst the three seniormost officers of the department who have been empaneled for promotion to the rank by the Union Public Service Commission (UPSC) on the basis of their length of service, record of service and experience for heading the police force. Once a person has been selected for the job, the Supreme Court had held, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The SPC may, however, be relieved of his responsibilities by the State Government acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.
Kerala was among the first States to comply with the Supreme Court directions to draw up new legislation. The Kerala Police Act of 2011 was not entirely in line with the Supreme Court guidelines, but by and large it was. Legislation by most other States was even less compliant with the Supreme Court directions. The Union Government chose not to introduce any new legislation, though it had a model Police Act drafted by the Soli Sorabjee Committee at its disposal. The Indian Police Act of 1861 was also only a model Act, which the States and Provinces were free to adopt. The same model could have been followed here, if the Union Government had decided to lead from the front. Unfortunately, that was not to be. As a result, to the best of my knowledge, the Delhi Police continues to be governed by the provisions of the Delhi Police Act of 1978, which does not incorporate the Supreme Court guidelines regarding the appointment of the Delhi Police Chief. Even in the Kerala Police Act of 2011, there is no mention of the process by which the State Police Chief is appointed.
Yet another significant judgement in the series of judicial pronouncements relating to the appointment of the State Police Chief was delivered on the 24th of April 2017 by a Supreme Court bench headed by Justice Madan Lokur in Dr. T.P. Senkumar Vs Union of India and others. This case related to the transfer of Senkumar, who was the State Police Chief in Kerala when there was a change in the State Government. Senkumar pointed that as per provisions of Section 97 of the Kerala Police Act of 2011, he was entitled to a minimum tenure of two years as State Police Chief and that the State Government erred in transferring him out peremptorily long before the completion of his tenure. The Supreme Court agreed and ordered that he should be reinstated.
It is important to note certain observations made in that judgement authored by Justice Madan Lokur. After explaining in some detail the key guidelines laid down by the Supreme Court in the Prakash Singh judgement, Justice Lokur said, “It will be seen from the above that some of the directions given by this Court were not accepted by the Kerala Legislature in enacting the Kerala Police Act 2011. Among these was the direction regarding the binding nature of the recommendations of the State Security Commission and the direction relating to the Director General of Police or the State Police Chief being relieved of responsibilities by the State Government acting in consultation with the State Security Commission. Consequently, in the selection or removal of the Director General of Police or the State Police Chief, the State Security Commission has no role to play under the Act. In a sense, therefore, an important element in the spirit of the judgement of this Court was not accepted by the Kerala Legislature, namely that of making the State Police Chief accountable only to the rule of law nor did the Kerala legislature accept the warning of the Bureau of Police Research and Development against excessive control over the police by the political executive and its principal advisers”. (emphasis added)
I also quote another significant passage from the Senkumar judgement: “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 a State, the State Police Chief as 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.” (emphasis added)
The next major development in the evolution of the law relating to the appointment of State Police Chief happened in 2018. On July 3, 2018, the Supreme Court Bench headed by the then CJI Dipak Misra laid down the following procedure for appointment of State Police Chiefs: All States shall send their proposals in anticipation of the vacancies to the UPSC well in time at least three months prior to the retirement of the incumbent on the post of DGP; the UPSC shall prepare the panel as per the directions of the Court in the judgement in Prakash Singh and intimate to the States; the State shall immediately appoint one of the persons in the panel prepared by the UPSC; there is no concept of Acting DGPs (emphasis added) and the person appointed as permanent DGP shall continue for two years irrespective of the 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 a 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,” the court held in 2018.
The Dipak Misra bench made it clear that the UPSC should empanel persons, 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, it said, and added that 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.
The Supreme Court took up the issue again in 2019 when Prakash Singh pointed out that the UPSC, while empanelling officers for consideration for appointment to the post of DGP, was considering the minimum residual tenure required to be taken into account as two years. In the process, many suitable and eligible officers were being left out, the court was told. The Supreme Court bench headed by CJI Ranjan Gogoi held in 2019 that the Prakash Singh judgement had envisaged the appointment of a DGP purely on the basis of merit and insulating the office from all kinds of influences and pressures, by insisting that once appointed, the incumbent should get a minimum of two years of service irrespective of his date of superannuation. “Neither this court had contemplated recommendation for appointment of officers who are on the verge of retirement or appointment of officers who have a minimum residual tenure of two years. The emphasis was to select the best and to ensure a minimum tenure of two years’ service of such officer who is to be selected and appointed. The Police Acts enacted also do not contemplate any fixed residual tenure for an officer to be recommended for appointment as the DGP of a state,” the bench observed.
“In the above conspectus the object in issuing directions in Prakash Singh, in our considered view, can best be achieved if the residual tenure of an officer, that is, remaining period of service till normal retirement, is fixed on a reasonable basis, which, in our considered view, should be a period of six months,” the bench held. “This will take care of any possible action on the part of the state government which can be viewed by any quarter as an act of favouritism. Recommendations for appointment of the DGP on the eve of retirement of the incumbent or of the UPSC in embarking upon a course of action which may have the effect of overlooking efficient and eligible officers will stand obviated by the above direction which we had deemed to be fit and proper to issue,” the Gogoi bench reasoned. The bench held that the direction that officers who have at least six months of service prior to the retirement, alone can be empanelled by the UPSC, will hold the field until the validity of the Police Acts in force which provide to the contrary are examined and dealt with by the court in another Writ Petition pending before it.
The 2019 order of the Gogoi bench has thus effectively clarified the position regarding the residual tenure of an officer to be in the zone of consideration to be posted as State Police Chief, by laying down that it (the remaining period of service till normal retirement) should be a period of six months. This has now become the new norm of eligibility for the post of the DGP, and the current CJI has also relied on it, even while considering names shortlisted for consideration for posting as Director, CBI.
But with even these clarifications, some problems remain, as Kerala’s most recent experience with the appointment of its State Police Chief shows. To start with, the well-meaning six-month limitation led, in Kerala, to the sidelining of at least one outstanding officer. Similarly, a peculiar situation arose in the pursuit of the process laid down by the Supreme Court in selecting the new State Police Chief in Kerala. Three officers were shortlisted, one of whom was already in the DGP rank. The other two were ADGP’s who were also found fit to be promoted to the rank of DGP and posted as State Police Chief. The person who was finally made State Police Chief was actually the junior most. Now a vexed question arises as to whether it was proper and legal to have overlooked the right of the other ADGP who is senior to him, to be promoted to the higher rank of DGP even if she was not being appointed SPC. The State Government obviously faced a problem because Kerala has only two cadre posts of DGP and the State does not have the powers to create more than two ex-cadre posts of DGP. Thus, the State can have only four officers in the rank of DGP. They already had four, one of whom was the outgoing SPC. Thus, only one slot of DGP was available. The proper procedure, one feels, would have been to first select the person to be promoted to the rank of DGP. If this involved supersession of any officer, the reasons should have been spelt out. The Government could have then proceeded to select one of the four DGP-ranked officers (or two, taking into account the fact that only two officers were shortlisted by UPSC would have remained in contention) as the State Police Chief. What has happened now is that an officer, who was found fit by the UPSC to become State Police Chief has effectively been superseded and not even promoted to the rank of DGP and no reasons have been given. There seems to be an element of unfairness involved in the procedure followed. This is in no way meant to cast any aspersion on the fitness of the officer who was ultimately selected and posted as SPC.
There are some issues regarding the procedure followed in Delhi, too. The Government of India ( Ministry of Home Affairs) issued orders on 29.06.21 directing that Shri Balaji Shrivasatav “ will hold the additional charge of Commissioner of Police, Delhi, in addition to his regular charge until the appointment of a regular incumbent or until further orders, whichever is earlier.” It would seem from this order that Balaji Srivastava who was holding the post of Special Commissioner, Vigilance will merely hold additional charge of the post of Commissioner of Police, Delhi. But if I understand the directions of the Supreme Court bench headed by Chief Justice Dipak Misra dated July 3, 2018 correctly, no State shall appoint any person to the post of DGP on acting basis. Is this direction not applicable in the case of Commissioner of Police in the Union Capital Territory of Delhi? The fact that CBI was also having an acting Director for several months prior to the posting of the present incumbent is also relevant in this connection. Was the Dipak Misra judgement of 2018 not applicable to CBI as well?
It is clear from the pronouncements of the Supreme Court quoted in detail above, that security of tenure is the key factor that has been emphasized for ensuring the insulation of police from political pressure. Yet when we look at the order dated 30.06.21 of Government of Kerala appointing Shri Anilkant as State Police Chief w.e.f. 1.7.21 and the order dated 29.06.21of Government of India (MHA) giving Shri Balaji Srivastav “the additional charge of Commissioner of Police, Delhi”, we see absolutely no mention of the tenure of these Police Chiefs. In fact, the wording of the orders seem to make it amply clear that the officers being appointed as Chiefs will have no security of tenure. (At the same time, as per media reports, Shri C. Sylendra Babu who has been appointed as Head of Police Force, Tamil Nadu has been given a fixed tenure of two years. I do not have the details about U.P.)
It is amusing to note that the State Government in Kerala and the Union Government in Delhi, run by two political parties diametrically opposed to each other on most issues, are agreed on one thing – that there is need to tread with caution on the question of giving a fixed tenure to the Police Chief, regardless of what the Supreme Court may think!
Views expressed are personal and need not reflect or represent the views of Centre for Public Policy Research.
Hormis Tharakan is Advisor to CPPR. He is an Indian Police Service (IPS) officer of the Kerala cadre (1968 batch) and was Chief of the Research and Analysis Wing (R&AW), India's external intelligence agency and also the Chief (DGP) of Kerala Police.