The Punjab Government has decided to seek a review of the Supreme Court order of July 3, 2018, directing states to choose and appoint their Director General of Police (DGP) from a panel to be constituted by the UPSC based on the concerned state government’s proposals. The government feels the implementation of the said directions of the apex court would lead to political interference in state matters.
Chief Minister Captain Amarinder Singh has accepted the opinion of State Advocate General Atul Nanda that the directions amounted to infringement, by the Centre, of the state’s powers, since Law & Order was a state subject as per the provisions of the Indian Constitution. According to an official spokesperson, a decision has been taken under the aegis of the Chief Minister to file an application in the apex court for modifications of its directions in its order dated July 3, after amending the Punjab Police Act 2007 to enable the constitution of a state police commission for appointment of DGP.
The suggested procedure would be in line with the recommendations of the SC in Prakash Singh & Ors. v. Union of India & Ors., (2006) 8 SCC 1 (Prakash Singh’s case), according to the government. In Prakash Singh’s case, the court had issued directions concerning police reforms in the various States. This included a direction to select the DGP of the state “from amongst the three senior-most officers of the Department who have been empaneled for promotion to that rank by the Union Public Service Commission (UPSC) on the basis of their length of service, very good record and range of experience for heading the police force.”
In its July 3, 2018 orders, the SC has directed states that “when they anticipate vacancy in the post of DG, they shall send their proposals to the Union Public Service Commission well in time i.e. atleast 3 months prior to the date of retirement of the incumbent on the post. The UPSC shall then prepare the panel as per the directions of in the judgment reported in (2006) 8 SCC 1, out which the State shall pick its DG.” The apex court has further directed “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.”
It has, however, granted liberty to the states to approach the court for modification of the above direction in the event they are aggrieved by it. The Chief Minister had sought the AG’s opinion in the matter and asked him to suggest the way forward for the state government. The matter assumes significance in view of the fact that the incumbent DGP, Suresh Arora, is due to retire on September 30, 2018. In his opinion, Nanda has pointed out that the directions in Prakash Singh’s case were passed by the Supreme Court “in light of the absence of any legislation then occupying the field at that time”.
He further notes that the State of Punjab had enacted the Punjab Police Act, 2007 on 5.02.2008, and Section 6 of the Act dealt with the selection and term of office of the DGP “but does not provide for selection of DGPs from the panel as prepared by the UPSC.” In the grounds made out by him for seeking review of the SC decision, Nanda says a reading of Prakash Singh’s case judgement makes it evident that the directions therein were to stay in force only till the respective State legislations were enacted.
Further, he points out that Police is a subject-matter covered under Entry 2, List II of the Seventh Schedule of the Constitution and thus is under the exclusive legislative domain of the State Government. After the enactment of the Punjab Police Act, 2007, the selection and appointment of the DGP would take place as per the provisions therein, and this would continue until the Act or any provision is specifically struck down by the Court in exercise of its powers of judicial review, having found the provision/Act to be unconstitutional, he says.
The AG goes on to cite various judgements to argue that the directions issued in Prakash Singh’s case were meant to operate only till such time as they were replaced by a suitable legislation (in this case the 2007 Act). He further points out that the state legislations had been kept in abeyance in the order of July 3, which was passed without hearing any of the States on the provisions of the various State enactments. In fact, the Supreme Court overlooked the fact that the prayer of the Union of India in the application for directions did not concern the issue of empanelment by the UPSC at all and was only restricted to the term of the DGP, in the opinion of the AG.
In fact, he said one has to appreciate that a writ petition of 2013, dealing with the constitutional validity of the state enactments, was still pending before the court, which did not take it up for hearing or consider it before passing its order. Finding the SC order to be an infringement of the legislative and executive powers of the state, as well as the Parliament, Nanda has said that the SC order “grossly restricts and interferes with the ability of the State to appoint a candidate as DGP who is responsible for administering, controlling and supervising the police service to ensure its efficiency, effectiveness, responsiveness and accountability in the State.”
According to him, the Constitution has limited the functions of the UPSC to the extent of “consultation” on matters of “suitability of candidates for such appointments, promotions or transfers” – it does not empower the UPSC to determine the suitable candidates as is contemplated SC decision. And powers exercised by the SC under Articles 32 and 142, as done in the instant case, are required to be consistent with the provisions of the Constitution, he adds. Nanda has also suggested the various amendments to be made to the Punjab Police Act, 2007 to pave the way for setting up the state police commission