2006 Supreme(SC) 884

2006(8) Supreme 470
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
Y.K. Sabharwal, CJI., C.K. Thakker and P.K. Balasubramanyan, JJ.
Prakash Singh & Ors. - Petitioners
versus
Union of India & Ors. - Respondents
Writ Petition (Civil) No. 310 of 1996
Decided on 22-9-2006
Counsel for the Parties :
For the Appearing Parties : G.E. Vahanvati, S.G., A. Sharan, A.S.G., Vikas Singh, A.S.G., R.K. Rathore, A.A.G., J.S. Attri, A.A.G., Ajay Siwach, A.A.G., Prashant Bhushan, Ms. Sandhya Goswami, Amit Anand Tiwari, P. Parmeswaran, Ms. Swati Mehta, Shri Narain, Sandeep Narain (for M/s. S. Narain & Co.), P.V. Dinesh, Vikas Sharma, Mrs. Anil Katiyar, H.K. Puri, U. Banerjee, V.M. Chauhan, Mrs. Priya Puri, R.K. Adsure, Anil Shrivastava, M.K. Verma, Ms. A. Subhashini, KH. Nobin Singh, Sapam Biswasjit Meitei, Mrs. Hemantika Wahi, Mrs. Pinky Behera, K.N. Madhusoodhanan, R. Satish, A. Mariarputham, Mrs. Aruna Mathur, Ms. Mini N. Nair (for M/s. Mariarputham, Aruna & Co.), V.G. Pragasam, S. Vallinayagam, Gopal Singh, Rituraj Biswas, Nishakant Pandey, Ms. Shivani Thakur, Ms. Suparna Srivastava, Ms. Pooja Maltani, Rajesh Srivastava, Ashok Bhan, S. Wasim A. Qadri, D.S. Mahra, Gopal Singh, Anukul Raj, Mohit Saha, T.V. George, Ms. Indu Malhotra, Ms. Liz Mathew, Kunal Tondon, Ms. Shilpy Kaucik, Ms. Sumita Hazarika, Jana Kalyan Das, R. Ayyam Perumal (N.P.), Riku Sarma (for M/s. Corporate Law Group), Ashok Mathur, Mohanprasad Meharia, K.K. Rai, Anuvrat Sharma, V.N. Raghupathy, Ms. Kaita Wadia, Sanjay R. Hegde, Ms. Vibha Datta Makhija, Ranjan Mukherjee, Kamlendra Mishra, Anis Suhrawardy and Aruneshwar Gupta Advocates.

IMPORTANT POINT
All State Governments to enact a new Police Act wholly insulating the police from any pressure whatsoever thereby placing in position an important measure for securing the rights of the citizens under the Constitution for the Rule of Law, treating everyone equal and being partisan to none, which will also help in securing an efficient and better criminal justice delivery system.

Headnote:Indian Police Act, 1861 - Constitution of India - Articles 32, 142, 144 and 355 - Police system - Writ petitions filed seeking directions to Union of India to re-define role and functions of the police and to frame a new Police Act - Petitioners are retired officers of Indian Police Service, known for their outstanding contributions - They have personal knowledge of working of police and also problems of the people - Petition sets out historical background giving reasons why the police functioning has caused so much disenchantment and dissatisfaction - According to petitioners, present distortions and aberrations in the functioning of the police have their roots in the Police Act of 1861 - Various Commissions and Committees have made recommendations for introducing reforms in the police set up in the country - Total uncertainty as to when police reforms would be introduced - Guidelines and directions to be observed are issued.

       Held : Having regard to (i) the gravity of the problem; (ii) the urgent need for preservation and strengthening of Rule of Law; (iii) pendency of even this petition for last over ten years; (iv) the fact that various Commissions and Committees have made recommendations on similar lines for introducing reforms in the police set-up in the country; and (v) total uncertainty as to when police reforms would be introduced, we think that there cannot be any further wait, and the stage has come for issue of appropriate directions for immediate compliance so as to be operative till such time a new model Police Act is prepared by the Central Government and/or the State Governments pass the requisite legislations. It may further be noted that the quality of Criminal Justice System in the country, to a large extent, depends upon the working of the police force. Thus, having regard to the larger public interest, it is absolutely necessary to issue the requisite directions.(Para 26)

       The preparation of a model Police Act by the Central Government and enactment of new Police Acts by State Governments providing therein for the composition of State Security Commission are things, we can only hope for the present. Similarly, we can only express our hope that all State Governments would rise to the occasion and enact a new Police Act wholly insulating the police from any pressure whatsoever thereby placing in position an important measure for securing the rights of the citizens under the Constitution for the Rule of Law, treating everyone equal and being partisan to none, which will also help in securing an efficient and better criminal justice delivery system. It is not possible or proper to leave this matter only with an expression of this hope and to await developments further. It is essential to lay down guidelines to be operative till the new legislation is enacted by the State Governments. Article 32 read with Article 142 of the Constitution empowers this 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 the orders passed by this Court.(Paras 29 and 30)

       With the assistance of learned counsel for the parties, we have perused the various reports. In discharge of our constitutional duties and obligations having regard to the aforenoted position, we issue the following directions to the Central Government, State Governments and Union Territories for compliance till framing of the appropriate legislations:

       State Security Commission

       (1)The State Governments are directed to constitute a State Security Commission in every State to ensure that the State Government does not exercise unwarranted influence or pressure on the State police and for laying down the broad policy guidelines so that the State police always acts according to the laws of the land and the Constitution of the country. This watchdog body shall be headed by the Chief Minister or Home Minister as Chairman and have the DGP of the State as its ex-officio Secretary. The other members of the Commission shall be chosen in such a manner that it is able to function independent of Government control. For this purpose, the State may choose any of the models recommended by the National Human Rights Commission, the Ribeiro Committee or the Sorabjee Committee(Para 31)

       The recommendations of this Commission shall be binding on the State Government.

       The functions of the State Security Commission would include laying down the broad policies and giving directions for the performance of the preventive tasks and service oriented functions of the police, evaluation of the performance of the State police and preparing a report thereon for being placed before the State legislature.

       Selection and Minimum Tenure of DGP:

       (2)The Director General of Police of the State shall be selected by the State Government from amongst the three senior-most officers of 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. The DGP 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.

       Minimum Tenure of I.G. of Police & other officers:

       (3)Police Officers on operational duties in the field like the Inspector General of Police in-charge Zone, Deputy Inspector General of Police in-charge Range, Superintendent of Police in-charge district and Station House Officer in-charge of a Police Station shall also have a prescribed minimum tenure of two years unless it is found necessary to remove them prematurely following disciplinary proceedings against them or their conviction in a criminal offence or in a case of corruption or if the incumbent is otherwise incapacitated from discharging his responsibilities. This would be subject to promotion and retirement of the officer.

       Separation of Investigation:

       (4)The investigating police shall be separated from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people. It must, however, be ensured that there is full coordination between the two wings. The separation, to start with, may be effected in towns/urban areas which have a population of ten lakhs or more, and gradually extended to smaller towns/urban areas also.

       Police Establishment Board:

       (5)There shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. The Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. The State Government may interfere with decision of the Board in exceptional cases only after recording its reasons for doing so. The Board shall also be authorized to make appropriate recommendations to the State Government regarding the posting and transfers of officers of and above the rank of Superintendent of Police, and the Government is expected to give due weight to these recommendations and shall normally accept it. It shall also function as a forum of appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotion/transfer/disciplinary proceedings or their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State.

       Police Complaints Authority:

       (6)There shall be a Police Complaints Authority at the district level to look into complaints against police officers of and up to the rank of Deputy Superintendent of Police. Similarly, there should be another Police Complaints Authority at the State level to look into complaints against officers of the rank of Superintendent of Police and above. The district level Authority may be headed by a retired District Judge while the State level Authority may be headed by a retired Judge of the High Court/Supreme Court. The head of the State level Complaints Authority shall be chosen by the State Government out of a panel of names proposed by the Chief Justice; the head of the district level Complaints Authority may also be chosen out of a panel of names proposed by the Chief Justice or a Judge of the High Court nominated by him. These Authorities may be assisted by three to five members depending upon the volume of complaints in different States/districts, and they shall be selected by the State Government from a panel prepared by the State Human Rights Commission/Lok Ayukta/State Public Service Commission. The panel may include members from amongst retired civil servants, police officers or officers from any other department, or from the civil society. They would work whole time for the Authority and would have to be suitably remunerated for the services rendered by them. The Authority may also need the services of regular staff to conduct field inquiries. For this purpose, they may utilize the services of retired investigators from the CID, Intelligence, Vigilance or any other organization. The State level Complaints Authority would take cognizance of only allegations of serious misconduct by the police personnel, which would include incidents involving death, grievous hurt or rape in police custody. The district level Complaints Authority would, apart from above cases, may also inquire into allegations of extortion, land/house grabbing or any incident involving serious abuse of authority. The recommendations of the Complaints Authority, both at the district and State levels, for any action, departmental or criminal, against a delinquent police officer shall be binding on the concerned authority.

       National Security Commission:

       (7)The Central Government shall also set up a National Security Commission at the Union level to prepare a panel for being placed before the appropriate Appointing Authority, for selection and placement of Chiefs of the Central Police Organisations (CPO), who should also be given a minimum tenure of two years. The Commission would also review from time to time measures to upgrade the effectiveness of these forces, improve the service conditions of its personnel, ensure that there is proper coordination between them and that the forces are generally utilized for the purposes they were raised and make recommendations in that behalf. The National Security Commission could be headed by the Union Home Minister and comprise heads of the CPOs and a couple of security experts as members with the Union Home Secretary as its Secretary.(Para 31)

       The aforesaid directions shall be complied with by the Central Government, State Governments or Union Territories, as the case may be, on or before 31st December, 2006 so that the bodies afore-noted became operational on the onset of the new year. The Cabinet Secretary, Government of India and the Chief Secretaries of State Governments/Union Territories are directed to file affidavits of compliance by 3rd January, 2007.(Para 32)