Police Cheifs, Political Appointments & Autonomy

By Sneha Rao

The appointment of Mr. Rakesh Asthana, of 1984 Batch of IPS, as the Commissioner of Police, Delhi Police has come across a surprise for many. The choice of a Gujarat cadre IAS officer to head Delhi Police, which has traditionally been manned by officers from the AGMUT cadre, ruffled many feathers. Though there’s no constitutional requirement to choose officers from a state’s own-cadres and while there have been past instances of inter-cadre transfers and appointments, this appointment has raised eyebrows for certain other reasons too. The appointment, coming just days before Mr. Asthana’s superannuation on 31st July, 2021, runs the risk of going against the mandate laid in the landmark Supreme Court judgement - Prakash Singh vs. Union of India. Prakash Singh - which dealt with the issue of appointment procedure of State Police Chiefs, culminating in a set of guidelines to be followed by state governments in appointing such DGPs and SPs. The guidelines, among other things, laid down a requirement that upon selection as a police chief, an officer must have a minimum guaranteed tenure of 2 years post-appointment. So why are people arguing that the appointment of Mr. Asthana runs against the rule laid down in Prakash Singh?

 

Prakash Singh Guidelines & Minimum Tenure 

The Apex court in Prakash Singh laid down that 

  1. The Director General of Police of the State shall be selected by the State Government from amongst the three senior-most officers empanelled by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. 

  2. The selected officer “should have a minimum tenure of at least two years irrespective of his date of superannuation.” 

 

The requirement that selected officers have a minimum residual tenure is not explicitly spelt out in the Prakash Singh case. The requirement arises from the case of Prakash Singh v Union of India (2019) which clarified the guidelines laid down in Prakash Singh.

Clarifying the scope and extent of the guidelines laid down in Prakash Singh, a 2 judge bench laid down that while the neither the Prakash Singh guidelines nor the Police Acts of different states contemplated any fixed residual tenure of an officer to be recommended for appointment as DGP, “the directions in Prakash Singh can be best achieved if the residual tenure of an officer is fixed on a reasonable basis, which, in our considered view, should be a period of 6 months.” The reason provided was  that Prakash Singh “could not have contemplated appointment of officers who are on the verge of retirement.” Thus, the cumulative effect of Prakash Singh and the clarificatory order given in are that for the appointment of Police Chiefs, the minimum tenure requirement of 6 months must be satisfied.

 

In the widely reported process of appointment of the CBI Chief this year, it was reported that the CJI as a member of the panel responsible for selection of CBI chiefs, had objected to the appointment of officers with less than 6 months of tenure citing the March 2019 apex court ruling requiring minimum 6 months of tenure.  This requirement, ironically, ruled out the appointment of Mr. Rakesh Asthana who was due to retire in July, 2021. 

 

Given the legally tenuous grounds on which the new Delhi Police Commissioner has been appointed, it is no surprise that the move has already been challenged before the Apex court. Multiple petitions have been filed with the Supreme Court urging the court to declare the notification announcing the officer’s appointment as “illegal”. The petitions have argued that “the appointment is in violation of the Prakash Singh case as (a) Asthana did not have a minimum residual tenure of six months; and (b) No UPSC panel was formed for the appointment of Delhi Police Commissioner; and (c) The criterion of having a minimum tenure of two years had been ignored.”

Is there any cogent reason why the Guidelines laid down in Prakash Singh have not been followed in the appointment of Delhi Police chief?    

Delhi Police, Statehood and Ministry of Home Affairs

Arguments have been made that the Prakash Singh guidelines do not apply to Delhi, since it is not a state and by extension to the appointment of the Commissioner of Delhi Police. The argument relies on two facts-one, that Delhi is not a ‘state’ under Art.1 of the Constitution and second, under the constitutional scheme for distribution of powers, Delhi Police falls not under the jurisdiction of Delhi Government but the Home Ministry itself. On this logic, the argument goes, that the Prakash Singh guidelines apply only to ‘state governments’ which have power to appoint Police Chiefs.      

That argument holds little ground when compared with the case of appointment of the Chief of CBI. The Central Bureau of Investigation derives its powers from Delhi Special Police Establishment Act and its appointments are made by a special committee composed of the Prime Minister, Leader of Opposition and the Chief Justice of India. It falls under the jurisdiction of the Home Ministry. Despite there being no ‘state government’ in charge of the appointment of CBI chief, the rules laid down in Prakash Singh were followed to hold that Mr.Rakesh Asthana among others, were ineligible for the post of CBI chief for not fulfilling the requirement of having 6 months. If the lack of an overarching ‘state government’ to control appointments has not been an impediment in applying the principles of Prakash Singh in the appointment of the CBI chief, what sets Delhi Police apart? If Mr. Asthana was not eligible for the post of CBI chief post due to lack of required tenure, how is Delhi Police chief an exception? 

 

Arguing that Prakash Singh does not apply to the appointment of Delhi Police Commissioner might not hold ground before the Supreme Court, nevertheless there is another set of facts surrounding the appointment that give rise to ambiguity. Mr.Rakesh Asthana was given an extension of one year just days before his superannuation and subsequently selected for the role of Delhi Police Commissioner. In this case, does the extension of one year satisfy the requirement of a minimum 6 month tenure? Or is the requirement of a 6 month tenure exclusive of any last-minute extension granted to police officers? These are tricky questions which require clarification from the Supreme Court. If extensions are allowed to be counted within the minimum tenure requirement, it will exacerbate incidents of last-minute extensions being given to superannuating officers and officers on extended tenure being appointed as Police Chiefs, thus bypassing the intent of the guidelines laid down in Prakash Singh. 

 

Potential Solutions: Balance of regulation and autonomy

The issue surrounding the appointment of Rakesh Asthana might have received wide-attention because of the politically charged nature of the post of Delhi Police Commissioner which is always caught in the tussle between the Delhi Government and the Home Ministry. However, it is folly to think it is a one-off incident. It is, in fact, symptomatic of the larger malaise of highly politicised nature of higher civil-service appointments. 

 

Committees set up in the past to examine the issue of police reforms have recommended having an independent, impartial body for higher appointments to limit political interference in posting and transfer of officers. The Ribeiro Committee on Police Reforms (1998) recommended establishment of Police Establishment Boards to monitor all transfers, promotions and other service-related matters within the police organisation. It further recommended that the selection of DGP should be in the hands of a selection committee made up of UPSC members, Home Secretary, incumbent DGP, Director of IB, etc. The Padmanabhaiah Committee on Police Reforms (2000) also recommended the need for a cogent tenure policy to prevent illegitimate political interference in police functioning.  It also suggested the need for a Police Establishment Board consisting of police officers to approve the transfers of police officers. The Prakash Singh case also deals with the issue of political interference. In fact, the first guideline of the Prakash Singh judgement directs the formation of State Security Commissions (SSCs) to “ensure that the State Government does not exercise unwarranted influence or pressure on the state police.” A Commonwealth Human Rights Initiative study found out that only 7 states provide for independent shortlisting of candidates in the process of appointing police chiefs whereas for others, the heads of police continue to be handpicked by the state governments.  

Despite numerous committees and bodies calling for the need to have an independent body for appointments, the issue has received very little traction from the Executive wing- both at the central and the state level. The issue of independence in appointment of police personnel is further compounded by the fact that policing is a state subject in India. Hence, the various degrees of compliance with the recommendations of police reform Committees and the directive of Prakash Singh. It is hoped that the high-profile litigation over the appointment of Mr. Rakesh Asthana acts as a catalyst leading to the establishment of an independent, impartial body for the appointment of Delhi Police Commissioners by the Home Ministry and other states follow course.

 

Sources:

Prakash Singh vs. Union of India, 2006 8 SCC 1.
https://indiankanoon.org/doc/1090328/ 

Prakash Singh vs Union of India, 2019
https://main.sci.gov.in/supremecourt/1996/79972/79972_1996_Judgement_13-Mar-2019.pdf

V. Venkatesan, Subodh Jaiswal as New CBI Director: How CJI Used SC Order to Limit Govt’s Discretion Forever (26 May, 2021), The Wire.
https://thewire.in/government/subodh-jaiswal-as-new-cbi-director-how-cji-used-sc-order-to-limit-govts-discretion-forever

Prashant Bhushan moves SC against Rakesh Asthana’s appointment as Delhi Police Commissioner, The Wire
https://thewire.in/law/prashant-bhushans-ngo-moves-sc-against-rakesh-asthanas-appointment-as-delhi-police-commissioner

Government Compliance with Supreme Court directives on Police Reforms, Commonwealth Human Rights Initiative, https://www.humanrightsinitiative.org/publication/government-compliance-with-supreme-court-directives-on-police-reforms-an-assessment-2020

Summary of Rebeiro Committee’s recommendations, Commonwealth Human Rights Initiative,
https://humanrightsinitiative.org/publications/police/recommendations_ribeiro.pdf

Summary of recommendations made by Padmanabhaiah Committee on Police Reforms, Commonwealth Human Rights Initiative,
https://www.humanrightsinitiative.org/programs/aj/police/india/initiatives/summary_padmanabhaiah.pdf