Prakash Singh v Union of India (2006)

It is the case on police reform in India, and it is the answer to a whole cluster of syllabus heads that would otherwise have no legal content: the structural organisation of the police, corruption in the police, the relationship between police and prosecution, police-public relations, and police reforms.

It matters methodologically too. It is a leading example of the Supreme Court issuing binding directions to fill a legislative vacuum, to operate until Parliament and the State legislatures act — a technique whose justification, and whose limits, are examinable in their own right.

Considering the far-reaching changes that had taken place after the enactment of the Police Act 1861, and the absence of any comprehensive review at the national level of the police system after independence despite radical changes in the political, social and economic situation, the Government of India on 15 November 1977 appointed a National Police Commission, for a fresh examination of the role and performance of the police both as a law-enforcing agency and as an institution to protect the rights of citizens enshrined in the Constitution.

The terms of reference required the Commission, among other things, to redefine the role, duties, powers and responsibilities of the police with special reference to the prevention and control of crime and the maintenance of public order; to evaluate the performance of the system and identify its basic weaknesses; to examine whether changes were necessary in the method of administration, disciplinary control and accountability; to inquire into the system of investigation and prosecution, the reasons for delay and failure, and how the system might be made efficient, scientific and consistent with human dignity; and to examine the special responsibilities of the police towards the weaker sections. It was also required to recommend measures and institutional arrangements to prevent misuse of police powers by administrative or executive instructions, political or other pressures, or oral orders of any type contrary to law, and for the quick and impartial inquiry of public complaints of misuse of police powers.

Its composition was a renowned and highly reputed former Governor as Chairman; a retired High Court Judge, two former Inspectors General of Police and a Professor of the Tata Institute of Social Sciences as members; and the Director of the CBI as full-time Member Secretary.

Its work ran about three and a half years, with analytical studies and research combined with an assessment of actual field conditions, study groups of public men, senior administrators, police officers and academics, seminars, research studies, and meetings with Governors, Chief Ministers and Inspectors General. It submitted its first report in February 1979, the second in August 1979, and three reports each in 1980 and 1981, including the final report in May 1981.

Its central finding, in the second report, is the sentence to memorise: the crux of police reform is to secure professional independence for the police to function truly and efficiently as an impartial agent of the law of the land, and at the same time to enable the Government to oversee police performance to ensure its conformity to the law. A supervisory mechanism without scope for illegal, irregular or mala fide interference with police functions has to be devised.

Its specific recommendations included a statutory tenure of office for the Chief of Police in a State, written into the Police Act itself; the preparation of a panel of IPS officers for posting as State Police Chiefs; and a statutory Commission in each State to lay down broad policy guidelines and to function as a forum of appeal for officers of the rank of Superintendent and above subjected to illegal or irregular orders. The eighth and final report annexed a draft new Police Act.

Nothing was implemented.

When the recommendations were not implemented, for whatever reasons or compulsions, and they met the same fate as the recommendations of many other Commissions, a petition under Article 32 was filed about ten years before the judgment, praying for directions to frame a new Police Act on the lines of the model Act drafted by the Commission, in order to ensure that the police is made accountable essentially and primarily to the law of the land and the people.

The first petitioner was a retired officer of the Indian Police Service who had served in various States for three and a half decades, had been Director General of Police of Assam and of Uttar Pradesh and of the Border Security Force, and had been awarded the Padma Shri in 1991 in recognition of his outstanding contribution. The second petitioner had also held various high positions in the police. The third petitioner was the organisation Common Cause.

The case pleaded was that violations of fundamental and human rights are generally in the nature of non-enforcement and discriminatory application of the laws, so that those having clout are not held accountable even for blatant violations and are not brought to justice for direct violations of citizens' rights in the form of unauthorised detentions, torture, harassment, fabrication of evidence and malicious prosecutions; and that the present distortions and aberrations in the functioning of the police have their roots in the Police Act of 1861, the structure and organisation of the police having basically remained unchanged.

The petition relied on a research paper on the political and administrative manipulation of the police, published in 1979 by the Bureau of Police Research and Development, warning that excessive control of the political executive and its principal advisers over the police has the inherent danger of making the police a tool for subverting the process of law, promoting the growth of authoritarianism, and shaking the very foundations of democracy.

• Besides the National Police Commission, the issue had been examined by the National Human Rights Commission, the Law Commission, the Ribeiro Committee, the Padmanabhaiah Committee and the Malimath Committee on Reforms of the Criminal Justice System.
• By Office Memorandum of 20 September 2005 the Government constituted a committee under Soli Sorabjee, former Attorney General, with five others, to draft a new Police Act in view of the changing role of the police and the challenges of modern global terrorism, extremism, rapid urbanisation and the fast evolving aspirations of a modern democratic society; it prepared a draft outline on 9 September 2006.
• A Union Home Minister had written to the State Governments in 1997 revealing a distressing situation, expressing the view that the popular perception was that many deficiencies in police functioning had arisen largely from an overdose of unhealthy and petty political interference at various levels, starting from transfers and postings of policemen of different ranks, the misuse of police for partisan purposes, and political patronage quite often extended to corrupt police personnel; and expressing the view that it was of great national importance to insulate the police from the growing tendency of partisan or political interference in the discharge of its lawful functions.
• The National Human Rights Commission in its report of 31 May 2002 drew attention to the need to act decisively on police reform, and said that recent events underlined the need to proceed without delay in order to preserve the integrity of the investigating process and to insulate it from extraneous influences.

There was convergence of views on four points: a State Security Commission at State level; a transparent procedure for the appointment of the Police Chief and the desirability of a minimum fixed tenure; separation of investigation work from law and order; and a new Police Act reflecting the democratic aspirations of the people.

Police is a State subject; the Court expected that State Governments would give due consideration to the Sorabjee Committee's model Act and pass suitable legislation. The question, however, was whether this Court should further wait for Governments to take suitable steps. The answer had to be in the negative.

Having regard to (i) the gravity of the problem; (ii) the urgent need for preservation and strengthening of the rule of law; (iii) the pendency of the petition for over ten years; (iv) the fact that various Commissions and Committees had made recommendations on similar lines; and (v) total uncertainty as to when police reforms would be introduced, the stage had come for the issue of appropriate directions for immediate compliance, to operate until a new model Police Act was prepared and the requisite legislation passed. The quality of the criminal justice system depends to a large extent on the working of the police force, so it was absolutely necessary in the larger public interest to issue the directions.

The power comes from Article 32 read with Article 142, which empower the Court to issue such directions as may be necessary for doing complete justice in any cause or matter; all authorities are mandated by Article 144 to act in aid of its orders.

The precedent is Vineet Narain v. Union of India, where nearly ten years earlier the Court had noticed the urgent need for State Governments to set up the requisite mechanism, and had directed the Central Government to pursue police reforms with the States and ensure the setting up of a mechanism for selection, appointment, tenure, transfer and posting not merely of the Chief of the State Police but of all officers of the rank of Superintendent of Police and above. The Court there expressed its shock that in some States the tenure of a Superintendent of Police is for a few months and transfers are made for whimsical reasons, which has a demoralising effect on the force, is alien to the envisaged constitutional machinery, and has the adverse effect of politicising the personnel.

1. State Security Commission. Every State must constitute one, to ensure that the State Government does not exercise unwarranted influence or pressure on the State police, and to lay down broad policy guidelines so that the police always acts according to the laws of the land and the Constitution. This watchdog body is to be headed by the Chief Minister or Home Minister as Chairman with the DGP as ex-officio Secretary, its other members chosen so that it can function independent of Government control; the State may choose any of the models recommended by the National Human Rights Commission, the Ribeiro Committee or the Sorabjee Committee. The recommendations of this Commission shall be binding on the State Government. Its functions include laying down broad policies and giving directions for the preventive and service-oriented functions of the police, evaluating the performance of the State police, and preparing a report for placing before the State legislature.

2. Selection and minimum tenure of the DGP. He shall be selected by the State Government from among the three senior-most officers of the Department empanelled for promotion to that rank by the Union Public Service Commission on the basis of length of service, very good record and range of experience; and once selected he should have a minimum tenure of at least two years irrespective of his date of superannuation. He may be relieved by the State Government acting in consultation with the State Security Commission consequent on action under the All India Services (Discipline and Appeal) Rules, on conviction for a criminal offence or corruption, or on incapacity.

3. Minimum tenure of other officers. Police officers on operational duties in the field — the Inspector General in charge of a Zone, the Deputy Inspector General in charge of a Range, the Superintendent in charge of a district, and the Station House Officer in charge of a police station — shall also have a prescribed minimum tenure of two years, unless it is necessary to remove them prematurely following disciplinary proceedings, conviction for a criminal offence or corruption, or incapacity, and subject to promotion and retirement.

4. Separation of investigation. The investigating police shall be separated from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people, ensuring full coordination between the two wings; the separation may begin in towns and urban areas with a population of ten lakhs or more and be extended gradually to smaller ones. The Law Commission had recommended the same in its 154th Report, and the Sorabjee Committee had recommended a State Bureau of Criminal Investigation under a Director reporting to the DGP.

5. Police Establishment Board. There shall be one in each State, a departmental body comprising the DGP and four other senior officers, which shall decide all transfers, postings, promotions and other service-related matters of officers of and below the rank of Deputy Superintendent. The State Government may interfere with a decision of the Board in exceptional cases only, after recording its reasons. The Board shall also make recommendations on the posting and transfer of officers of and above the rank of Superintendent, to which the Government is expected to give due weight and which it shall normally accept; and it shall function as a forum of appeal for officers of the rank of Superintendent and above on promotion, transfer, disciplinary proceedings or their being subjected to illegal or irregular orders.

6. Police Complaints Authority. One at district level, to look into complaints against officers of and up to the rank of Deputy Superintendent, which may be headed by a retired District Judge; and one at State level, for officers of the rank of Superintendent and above, headed by a retired Judge of the High Court or Supreme Court. The head of the State-level Authority is chosen by the State Government from a panel proposed by the Chief Justice; the district-level head from a panel proposed by the Chief Justice or a Judge of the High Court nominated by him. The Authorities may be assisted by three to five members selected from a panel prepared by the State Human Rights Commission, Lok Ayukta or State Public Service Commission, drawn from retired civil servants, police officers, officers of other departments, or civil society, working whole time and suitably remunerated; they may use the services of retired investigators from the CID, Intelligence or Vigilance for field inquiries. The State-level Authority takes cognizance only of allegations of serious misconduct — incidents involving death, grievous hurt or rape in police custody. The district-level Authority may also inquire into allegations of extortion, land or house grabbing, or any incident involving serious abuse of authority. The recommendations of the Complaints Authority, at both levels, for any action, departmental or criminal, against a delinquent police officer shall be binding on the concerned authority.

7. National Security Commission. The Central Government shall set one up at the Union level to prepare a panel for the selection and placement of Chiefs of the Central Police Organisations, who should also be given a minimum tenure of two years; it would also review measures to upgrade the effectiveness of those forces, improve service conditions, ensure coordination between them, and ensure that the forces are generally utilised for the purposes for which they were raised. It could be headed by the Union Home Minister and comprise heads of the Central Police Organisations and a couple of security experts, with the Union Home Secretary as its Secretary.

Compliance was directed on or before 31 December 2006, so that the bodies became operational at the onset of the new year, with affidavits of compliance from the Cabinet Secretary and the Chief Secretaries by 3 January 2007.

It was also suggested that cases arising out of threats from international terrorism or organised crimes — drug trafficking, money laundering, smuggling of weapons across the borders, counterfeiting of currency, and the activities of mafia groups with transnational links — should be treated as measures for the defence of India under Entry 1 of the Union List and as internal security measures under Article 355, and that the investigation of cases with inter-State or international ramifications be entrusted to the Central Bureau of Investigation.

The suggestion seemed useful on its face. But unlike the matters extensively studied by experts, on which the Court had no difficulty in issuing directions, there had not been much study or material before the Court, and it declined to issue a direction, requesting instead the views of the National Human Rights Commission, the Sorabjee Committee, the Bureau of Police Research and Development and the Central Government.

That refusal is worth a paragraph in any answer, because it shows the Court's own sense of the limits of its directive jurisdiction: it will fill a vacuum where an expert consensus already exists, and not otherwise.

- On police reforms, this is the whole answer: the National Police Commission and its fate, the convergence of five other bodies, the Home Minister's own admission, and the seven directions. - On the structural organisation of the police, pair the directions with sections 3, 4 and 7 of the Police Act 1861 and show precisely which defect each direction attacks: direction 1 attacks the unqualified superintendence of the State Government under section 3; directions 2 and 3 attack the transfer-and-posting weapon; direction 5 attacks it from below; direction 6 supplies the accountability that section 29 of the Act never provided. - On police-public relations and corruption, use the Home Minister's letter and the Bureau of Police Research and Development paper, which are the strongest sourced statements of the problem. - On the relationship between police and prosecution, direction 4 and the 154th Report of the Law Commission are the material. - On judicial method, use Article 142 and Vineet Narain, and then use the Court's refusal on the CBI suggestion to show the boundary it drew for itself. </content>