The high power committee: PM Modi, Justice Ramana, Congress leader Chowd
The nation should thank Chief Justice of India Justice N V Ramana for preventing persons with less than six months in service from becoming the director of CBI. His intervention also eliminated the possibility of exercising the executive power frequently to select a new candidate for the high office. A candidate listed was having one week service while other had just two months. Eight more candidates were having less than 6 months.
The CBI Director’s post is left vacant since February 2, after the expiry of the term of Rishi Kumar Shukla. Praveen Sinha was appointed as an interim/acting chief until further orders. It is reported that candidature of the IPS officers – National Investigation Agency NIA Chief Y C Modi who retires on May 31, Border Security Force BSF DG Rakesh Asthana, who is about to retire by July 31 and Indo-Tibetan Border Police ITBP chief SS Deswal could not be considered because of this direction of the Supreme Court. It is surprising that a person who retires in a week is included in the list for consideration. Some media reported that first two were the government’s favourites for this position. As the meeting began, Leader of the Opposition Adhir Ranjan Chowdhury objected to the way the Department of Personnel and Training (DoPT) has shortlisted 16 from 109 candidates. It is reported that the PM asked him to put his objection in writing. Then the CJI Ramana has asked the Government to follow the rule of law which is laid down in three judgments of Supreme Court, Prakash Singh, Vineet Narayan and PD Dinakaran, directing that only officers left with six months or more service should be considered. It was reported that officers up to number 11, i.e., ten were eliminated in one go.
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Using British laws
A 170-year-old British law- the Police Act of 1861 governs Indian police forces, with an objective of making it more efficient instrument for the prevention and detection of crime. Each state is empowered by the Police Act to establish its own police force.
The CBI has been instituted by a pre-Independence British made law- the Delhi Special Police Establishment Act, 1946. Its Director’s appointment is guided by Section 4(A) of the Delhi Special Police Establishment Act, 1946. And this section is amended by the Lokpal and Lokayuktas Act, 2013.
Ignoring NPC Recommendations
Increasing political interference in policing and its disastrous consequences were examined by the National Police Commission in its Second Report (August 1979), which recommended (a) investigative functions of the police should be made completely independent of any extraneous influences: (b) Chief of the State Police Force should be selected from a panel of three IPS officers of that State cadre:(c) The panel itself should be prepared by a committee headed by the Chairman of the UPSC: (d) The Police Chief thus selected should have a fixed tenure, etc.
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Prakash Singh 2006 Just on Paper
In 1996, Prakash Singh in a petition before the SC attributed the abuse of power and inefficient functioning of the police to archaic structure and organisation outlined in the Police Act, 1861. Supreme Court in 2006 directed (a) each State Government to establish a State Security Commission and a Police Establishment Board to determine transfers, postings, promotions, etc.,(b) outlined the procedure for selection of the Director General of Police, (c) prescribed minimum two-year tenure for police officers, and (d) directed police departments to separate law and order functions from the investigation function, etc. Regarding minimum tenure the State Governments are asked to ensure that other police officers on operational duties (including Superintendents of Police in charge of a district and Station House Officers in charge of a police station) also have a minimum tenure of two years.
Vineet Narain 1998, Advice ignored
In Vineet Narain v Union of India, (A.I.R. 1998 S.C. 889) SC on 18th December 1997, the CJI Verma and two Judges (https://indiankanoon.org/doc/1203995) directed in Paragraph 7:
“The Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation. This would ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment”.
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Generally, the Parliamentary enactment will not contain minute details or guidelines for appointment. Based on the experience and issues before it, the judiciary will evolve the rules. Not to consider a candidate with less than six years-service left is more a question of common sense than a strict rule of statute.
The Director General of Police of the State shall be selected by the State Governments from amongst the three senior-most officers in the Department who have been empanelled for promotion to that rank 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. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation.
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Several states such as Andhra Pradesh, Uttar Pradesh, Gujarat, Nagaland opposed fixed tenure, saying: Fixed tenure will demoralise officers and limit the Government’s flexibility, a fixed two-year tenure for the DGP, irrespective of their superannuation date, will block opportunities for other eligible senior officers, who will be demoralised, further, the directives take away the right of the Government to transfer police officers to meet administrative exigencies.
Prakash Singh 2018, struggle continues
In a petition by former DGP of Uttar Pradesh, Prakash Singh, the bench of Supreme Court passed a significant order stating that recommendation for appointment of DGP by the UPSC and preparation of panel should be purely on the basis of merit from officers who have a minimum residual tenure of six months.
Prakash Singh alleged that this July 3, 2018 directive was being misused by state governments who were ignoring competent senior officers. He had said that after the apex court’s last year order, the UPSC while empanelling officers for consideration for appointment as DGP was considering the minimum residual tenure required to be taken into account as two years.
The apex court had in July 2018 passed a slew of directions on police reforms and restrained all states and Union territories from appointing any police officer as acting DGPs to avoid favouritism and nepotism in such high-level appointments.
SC Clarification 2019
In its order passed on March 13, 2019, the bench referred to the 2006 verdict of the apex court which had said that an officer would have a minimum tenure of two years after he or she was appointed as the DGP. It clarified:
“The direction issued by this court neither contemplated the appointment of a Director General of Police on the eve of his retirement nor the practice now adopted by the Union Public Service Commission in making the empanelment, i.e. empanelling officers who have at least two years of tenure,” the bench noted.
“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 bench said.
The court referred to the Police Acts enacted by states and said they also do not contemplate any fixed residual tenure for an officer to be recommended for appointment as the DGP.
“In the above conspectus the object in issuing the directions in Prakash Singh (2006 verdict), in our considered view, can best be achieved if the residual tenure of an officer i.e. 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,” it said. The bench said, “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.” The bench made it clear that its direction will “hold the field” until validity of Police Acts of states are examined and dealt with by the apex court. Singh, on whose PIL the directions on police reforms were passed, had alleged in his application that the specific direction that IPS officers should have minimum two years of services left for being considered for the post of DGPs was being used to deny the promotion to “competent” and “honest” officers by states for their vested interest.
Prashant Bhushan representing Prakash Singh argued: “Due to this, brilliant police officers have been overlooked just because they do not have two years of services left. The UPSC says that it will not consider these officers.”
C Dinakar case 2004
Union of India versus C. Dinakar, (2004), further explained the appointment process saying: “ordinarily IPS officers of the senior most four batches in service on the date of retirement of CBI Director, irrespective of their empanelment, shall be eligible for consideration for appointment to the post of CBI Director”.
Though the order in the Prakash Singh case pertained to the appointment of DGPs, it was extended to CBI Director too. With this first ten members in the list prepared by the DoPT were left out and officers listed from N. 11 were considered.
The Lokpal Act which was the result of a prolonged agitation by the civil society against corruption in high offices and for independent body that is fool proof of political influence as to what and who should be investigated. The Lokpal Act is totally ignored by the Union and states. Only provision that is referred is its amendment to Section 4(A) of DSPE Act, 1946.
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Centre does not know until CJI cautioned
The question is that until the top judicial personality raised this judicial precedent, the Government of India either did not know or ignored what was strictly laid down 15 years ago that heads of the positions like director CBI should have a clear two-year term or reasonable time to serve in that high capacity. Not only to the position of CBI, but to all the positions like DGP in each state.
It is good that the Chief Justice has reminded the Government the law of precedent laid down by his court. However, to read and follow such an important rule which gives independence based on stability or certainty of term, a file from department of Law would have been enough. The Attorney General Officer, the Secretary of Law department, the Law Ministry should have been consulted about the rules, law, precedent and guidelines much before convening the meeting of high-power body for this purpose, and they should have prepared a table of candidates for consideration and their eligibility based on their individual performance vis-à-vis the law. Whether it was done?